1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEIGHTON B. DOREY, IV, Case No.: 20cv1772-TWR (MSB) 12 Petitioner,

ORDER DENYING PETITIONER’S

13 vs. REQUEST FOR RESUBMISSION OF

PETITION FOR WRIT OF HABEAS

14 WILLIAM GORE, San Diego County

CORPUS AND DENYING A

Sheriff, 15 CERTIFICATE OF APPEALABILITY Respondent. 16 [ECF No. 7] 17 18 19 On September 8, 2020, Petitioner, detained at the San Diego County Central Jail 20 awaiting retrial following a hung jury, filed a pro se Petition for a Writ of Habeas Corpus 21 pursuant to 28 U.S.C. § 2254. (ECF Nos. 1-2.) He stated he is currently proceeding pro 22 se in state court preparing for retrial and his rights to due process, a fair and speedy trial, 23 and meaningful access to the courts are being denied because the San Diego Central Jail 24 “does not afford the petitioner ample and appropriate law library access as required by the 25 extraordinarily complex and challenging demands of a capital murder defense, and the jail 26 thus bars the petitioner from meaningful access to the Court, and from participating in a 27 fair and speedy trial.” (ECF No. 1 at 6, 13-14.) He sought an order from this Court 28 requiring the jail to allow him 20-30 hours per week of law library time. (Id. at 14.) 1 On October 21, 2020, the Court dismissed the Petition without prejudice under the 2 abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). (ECF No. 5 at 2, 3 citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 4 (1982) (noting that Younger “espouse[d] a strong federal policy against federal-court 5 interference with pending state judicial proceedings”) and Sherwood v. Tompkins, 716 F.2d 6 632, 634 (9th Cir. 1983) (holding that those concerns are particularly important in the 7 habeas context).) The Court found all three criteria for abstention were present and no 8 extraordinary circumstances existed to allow the Court to refrain from abstention. (Id., 9 citing Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001) 10 (holding that absent extraordinary circumstances, abstention under Younger is required 11 when: (1) state judicial proceedings are ongoing; (2) the state proceedings involve 12 important state interests; and (3) the state proceedings afford an adequate opportunity to 13 raise the federal claim) and Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly 14 in the most unusual circumstances is a defendant entitled to have federal interposition by 15 way of injunction or habeas corpus until after the jury comes in, judgment has been 16 appealed from and the case concluded in the state courts.”)) 17 On December 10, 2020, 50 days after entry of judgment, Petitioner constructively 18 filed a document titled: “Resubmission of Petition for Review” in which he argues this 19 Court was wrong to find that state procedures provide an adequate opportunity to raise his 20 claims because he has now exhausted state remedies at every level of administrative and 21 state court review but has not obtained the relief he requests, namely, access to the jail law 22 library in excess of the 12-24 hours per month currently available to jail prisoners in order 23 to enable him to adequately defend himself in his upcoming trial, and contending he will 24 have no law library access once his retrial commences. (ECF No. 7 at 2-6.) Petitioner 25 requests the Court reconsider its prior Order of dismissal, arguing that because he was 26 unable to obtain relief in state court, this Court was wrong to find he had an adequate 27 opportunity to raise his federal claims there, which he also contends establishes 28 extraordinary circumstances to avoid Younger abstention. (Id.) 1 I. Motion for Reconsideration 2 Where reconsideration of a non-final order is sought, the court has “inherent 3 jurisdiction to modify, alter or revoke it.” United States v. Martin, 226 F.3d 1042, 1049 4 (9th Cir. 2000) (“The authority of district courts to reconsider their own orders before they 5 become final, absent some applicable rule or statute to the contrary, allows them to correct 6 not only simple mistakes, but also decisions based on shifting precedent, rather than 7 waiting for the time-consuming, costly process of appeal.”) Here, however, a final order 8 of dismissal has been filed and final judgment has been entered. (ECF Nos. 5-6.) 9 A motion for reconsideration or relief from a final judgment may be brought under 10 either Federal Rule of Civil Procedure 59(e) or Rule 60(b). Fuller v. M.G. Jewelry, 950 11 F.2d 1437, 1442 (9th Cir. 1991), citing Taylor v. Knapp, 871 F. 2d 803, 805 (9th Cir. 1989); 12 see Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989) (stating that “a post-judgment 13 motion will be considered a Rule 59(e) motion where it involves ‘reconsideration of 14 matters properly encompassed in a decision on the merits.’”), quoting White v. New 15 Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982). A Rule 59 motion for 16 reconsideration “must be filed no later than 28 days after the entry of the judgment.” 17 Fed.R.Civ.P 59(b). A district court may grant a Rule 59(e) motion if it “is presented with 18 newly discovered evidence, committed clear error, or if there is an intervening change in 19 the controlling law.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal 20 quotation marks and citations omitted). 21 “Although Rule 59(e) permits a district court to reconsider and amend a previous 22 order, the rule offers an extraordinary remedy, to be used sparingly in the interests of 23 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 24 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). Motions for 25 reconsideration, like the one Petitioner has filed in this case, do not offer parties a “second 26 bite at the apple,” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001), and may not “be 27 used to ask the Court to rethink what it has already thought through-rightly or wrongly.” 28 United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998); see also Ramser v. 1 Laielli, 2017 WL 3524879, at *1 (S.D. Cal. Aug. 15, 2017), citing Keweenaw Bay Indian 2 Cmty. v. State of Mich., 152 F.R.D. 562, 563 (W.D. Mich. 1992) (“[W]here the movant is 3 attempting to obtain a complete reversal of the court’s judgment by offering essentially the 4 same arguments presented on the original motion, the proper vehicle for relief is an 5 appeal.”) 6 Petitioner disagrees with the Court’s assessment as to whether his case satisfies the 7 criterial to abstain from interference with his ongoing state criminal proceedings. 8 Ultimately, as the party seeking reconsideration under Rule 59(e), he must “show more 9 than a disagreement with the Court’s decision,” or offer a “recapitulation of the cases and 10 arguments considered by the court before rendering its original decision.” United States v. 11 Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). As set forth below, 12 Petitioner has not done so. Neither has he filed his motion within 28 days of entry of 13 judgment. He is therefore not entitled to relief from judgment under Rule 59(e). 14 Pursuant to Rule 60(b), a court may “relieve a party or its legal representative from 15 a final judgment, order, or proceeding” upon a showing of (1) mistake, surprise, or 16 excusable neglect, (2) newly discovered evidence, (3) fraud, (4) a void judgment, (5) a 17 satisfied or discharged judgment, or (6) any other reason that justifies relief. Fed. R. Civ. 18 P. 60(b)(6). The Supreme Court has stated that Rule 60(b) applies to habeas proceedings 19 “only to the extent (it is) not inconsistent with” the limitations on second or successive 20 applications. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). However, “a motion asserting 21 some defect in the integrity of a habeas proceeding, such as a claim of fraud on the federal 22 habeas court,” as opposed to attacking the resolution of a claim on the merits, does not 23 constitute a second or successive petition. Id. at 534 n.4. Accordingly, it does not appear 24 Petitioner’s contention that this Court erred in making the determination that the criteria 25 for Younger abstention were properly applied to his case is a second or successive habeas 26 petition, and the Court has jurisdiction to address a Rule 60(b) motion. 27 Petitioner has made no attempt to satisfy any provision of Rule 60(b) except the 28 exceptional circumstances provision of Rule 60(b)(6). “Rule 60(b)(6) relief normally will 1 not be granted unless the moving party is able to show both injury and that circumstances 2 beyond its control prevented timely action to protect its interests.” United States v. Alpine 3 Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993); see also Martella v. Marine 4 Cooks & Stewards Union, Seafarers Int'l Union of N. Am., AFL-CIO, 448 F.2d 729, 730 5 (9th Cir. 1971) (“60(b) motions are addressed to the sound discretion of the district court.”) 6 Petitioner cannot demonstrate injury because he merely argues that since he did not obtain 7 the relief he sought in state court, this Court erred in finding there are state procedures 8 which provide an adequate opportunity to raise his federal constitutional claims. (ECF No. 9 7 at 2-6.) But because Petitioner has not shown that the state courts or tribunals were 10 incompetent to address his federal constitutional claims, this prong of Younger abstention 11 remains satisfied. Gibson v. Berryhill, 411 U.S. 564, 577 (1973). 12 Petitioner also contends he has shown extraordinary circumstances to avoid Younger 13 abstention because he tried and failed to obtain relief in state court or jail administrative 14 procedures. A district court may exercise jurisdiction when Younger abstention would 15 otherwise be warranted “[o]nly in cases of proven harassment or prosecutions undertaken 16 by state officials in bad faith without hope of obtaining a valid conviction and perhaps in 17 other extraordinary circumstances where irreparable injury can be shown is federal 18 injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, 401 19 U.S. 82, 85 (1971). There are no such allegations here. No irreparable injury could flow 20 from a violation of the federal constitutional rights Petitioner is allegedly facing by a lack 21 of adequate access to the jail law library to prepare for his retrial because such violations 22 can be addressed by the state courts during his retrial or on appeal if he is convicted, and 23 his extraordinary circumstances are grounded only in an alleged anticipated constitutional 24 violation, which is insufficient to justify departure from Younger abstention. See e.g. 25 Bautista v. California, 2016 WL 5661861, at *2 (C.D. Cal. Sept. 28, 2016) (“[A] claim of 26 constitutional error during the ongoing state proceeding, by itself, is insufficient to invoke 27 an exception to Younger abstention.”), citing Baffert v. California Horse Racing Bd., 332 28 F.3d 613, 621 (9th Cir. 2003) (“[T]he constitutional dimension of the error claimed does 1 |/not, by itself, constitute an exception to the application of Younger abstention.’’) 2 || Accordingly, to the extent Petitioner’s “Resubmission of Petition for Review” is a Rule 3 60(b) motion for relief from judgment, the motion is denied. 4 A certificate of appealability “is required to appeal the denial of a Rule 60(b) motion 5 || for relief from judgment arising out of the denial of’ a § 2254 petition. Payton v. Davis, 6 F.3d 812, 818 n.8 (9th Cir. 2018); see also United States v. Lambros, 404 F.3d 1034, 7 || 1036 (8th Cir. 2005) (holding that a certificate of appealability is required to appeal an 8 ||order denying a Rule 59(e) motion which sought to resurrect a dismissed habeas petition). 9 Court finds a certificate of appealability inappropriate here because no “jurists of 10 |/reason would find it debatable whether the district court abused its discretion in denying” 11 |/a Rule 59(e) or 60(b) motion. United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 12 |}2015). 13 Conclusion and Order 14 Petitioner’s Resubmission of Petition for Review (ECF No. 7), to the extent it is 15 |}construed as a Motion for Reconsideration or a Motion for Relief from judgment pursuant 16 || to Rule 59(e) or 60(b), is DENIED. A Certificate of Appealability is DENIED. 17 IT IS SO ORDERED. 18 19 || Dated: January 5, 2021 —_—_ 20 [ od (2 re 1 Honorable Todd W. Robinson United States District Court 22 23 24 25 26 27 28 6